Recente publicaties

39. EU policies to safeguard and promote diversity

This is the (unedited) draft of my contribution to Elisabeth Prugl and Markus Thiel (eds), Diversity in the European Union, New York, Palgrave Macmillan, published November 2009, pp.21-36. For more information on this book, see: [klik hier]

The European Union’s Policies to Safeguard and Promote Diversity

The European Union (EU) often declares itself a champion of diversity. It may be asked what is actually meant by this concept and which policies the EU is pursuing to live up to this promise. Is it only rhetoric, driven by considerations of political convenience, or are real measures being taken? And do they make a difference? This chapter proceeds as follows. The first section analyses how the diversity of the member states themselves is safeguarded by the very structure and functioning of the Union. The second section looks into diversity within the member states and describes how minority policies became part of the EU’s political agenda. Section three analyses the change in the EU’s minority discourse from group-based rights to individual rights. Multiculturalism has given way to integration, non-discrimination is laid down in new legislation and is being mainstreamed into various EU policy areas. Section four contains a short remark on the EU’s sex equality policy and its relation to diversity. The last section contains a conclusion and suggestions for further research.

Diversity among Member States

In the context of EU politics and policies the diversity concept refers in the first place to the diversity of the national cultures of the member states. Remarkably, for this purpose these cultures are implicitly assumed to be homogenous. This can be seen in Article 6(3) of the Treaty on European Union (TEU): “The Union shall respect the national identities of its member states.” Lawyers understand this provision as a legal guarantee of the sovereignty of the member states. The member states remain “the masters of the treaties”; they stay in control of the limits of the integration process. The wish to safeguard the diversity of the member states does not only refer to their cultural identities, but is also about power politics: the member states are supposed to keep each other in equilibrium. Many observers have said that the European Union is an international organization sui generis. It is neither a purely intergovernmental international organization, nor a political federation – let alone a federal state, but something in between. The national identity of the member states is protected by some elements in the EU’s legal structure and political machinery. I mention here the most important ones. · The principle of conferral (or competence attribution). The EU can only exercise those competences explicitly conferred upon it by the member states. These competences are (to be) enumerated in the treaties. (Consolidated version of the TEU (2008), Art. 5; Consolidated version of the Treaty on the Functioning of the European Union (TFEU) (2008), Art. 2-6). · Revision of the Treaties demands the agreement of all member states (TEU, Art. 48). · The Council, i.e. the member states, still have the most important say in the political life of the Union. This element has been strengthened by the Treaty of Lisbon, inter alia by adding the right of the member states that wish to do so to leave the Union, and by giving the national parliaments an independent role in the EU decision-making processes. (Consolidated version of the TEU, (2008), Art. 50 and Protocols no. 1 and 2). · Within the Council, the voting procedures prevent a permanent alliance of strong member states against weaker ones. (TEC, Art. 205; Consolidated version of the TFEU (2008), Art. 238) · The political machinery of the EU is multi-centered, complex and fragmented; this gives opportunities to many political entrepreneurs inside and outside the system and prevents domination from above by one single authority (Richardson 1996; Van Schendelen 2002). · The principle of mutual recognition of technical standards for goods and services, instead of harmonization from above (Padoa-Schioppa 2005). · The languages regime: all official documents are translated into all recognized national languages, and so is every intervention in the formal sessions of the Council and the European Parliament (See ‘Official EU languages’ [2009]). In conclusion: the European Union “is struggling to find a balance between the whole and the parts, between unity and diversity, coordination and autonomy” (Olsen 2007, 44).

Diversity within Member States

Diversity within the member states refers in the first place to the position of national, ethnic or cultural minorities. The EU has no legal competence regarding the minority policies of the member states. An overall EU policy of how EU member states should deal with their internal minorities and how they should manage cultural diversity within their territories is lacking. Such an EU policy with respect to diversity within the member states would run counter the wish to preserve the diversity between the member states, in as far as they have different ideas and practices with respect to this issue. Managing diversity in both senses at the same time seems like trying to square a circle (Toggenburg 2004b, 11-12). Nevertheless, in the early nineties of the last century the EU decided to demand decent minority policies from the countries in Central and Eastern Europe which had applied for EU membership. In 1993 the Copenhagen European Council decided that the accession states should have ”achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities” (European Council 1993, 14). The EU feared a risk import ethnic and social tensions in the accession states might undermine the security and the stability of the European Union after enlargement. The EU lacked a clear set of norms and standards stating what this respect for and protection of minorities would entail. The international minority law existing at that time, rested on article 27 of the International Covenant on Civil and Political Rights (ICCPR), which says: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language. This provision guarantees minority rights only in a general and negative sense. The obligations of the states parties to the Covenant are not clear at first sight. The EU monitoring process of minority policies in the accession states therefore leaned heavily on standards which were being developed by the Council of Europe (CoE). The Council of Europe adopted the Framework Convention for the Protection of National Minorities in 1995; it entered into force 1998. The Framework Convention contains a systemized catalogue of rights and is far more concrete in specifying the obligations of the states parties. Ratification and implementation of this Framework Convention became the main condition to be met for the fulfilment of the Copenhagen criteria with regard to the protection of minorities. Recommendations from the Organization for Security and Co-operation in Europe (OSCE) and interventions by the OSCE High Commissioner on National Minorities also played a role (Toggenburg 2004a). Working through these three international organizations – the EU, the Council of Europe and the OSCE – the governments of Western European countries developed a system of “diversity governance” for the countries in Central and Eastern Europe (von Bogdandy 2007, 23). But this diversity governance lacked a firm foundation in EU law. Moreover, the policies in the old member states ranged “from elaborate constitutional and legal means for minority protection and political participation to constitutional unitarism and outright denial that national minorities exist” (Sasse 2004, 65). These policies of the old member states were not included in this monitoring exercise. This is the notorious double standard, which many observers have noted. (For an elaborate criticism, see Kochenov 2008b). The accession process has brought considerable legal and institutional changes in the acceding states. But whether this resulted in real effective minority protection depended largely on the domestic political agenda (Sasse 2004, 65). Governments of the candidate states thought “more in terms of closing chapters, not solving problems” (Open Society Institute 2002, 17). In many cases the political will to deliver more than lip service was lacking. This seemed to hold for the EU institutions too. The Commission actually applied two different standards. Regarding the position of the Russian-speaking minorities in Estonia and Latvia, the Commission turned a blind eye to the policy of exclusion pursued by the governments of these countries, while in other candidate countries “the Commission is clearly ’on the side of the minorities’” (Kochenov 2007, 36). The process of Eastern enlargement of the European Union has raised awareness about the situation of minorities and the issue of diversity in Europe. But the policy of conditionality had – and still has –serious flaws that hamper its political potential. The credibility of the exercise was undermined because substantive common EU standards were lacking, contradictory approaches were pursued for different applicant countries and the old member states themselves still adhere to different views on minority policies. This was no different with respect to the other elements of the Copenhagen criteria. Kochenov has spelled out in detail how the demands of democracy and the rule of law were lacking clear benchmarks, how the Commission presented poorly researched progress reports that were not actually used to determine progress, how opposing demands were made to different countries et cetera. He concludes conditionality was “a resounding failure” (Kochenov 2008a, 300).

The Two-sided Nature of Diversity

In the background of the problem sketched in the previous section is the two-sided nature of diversity. Diversity is both about individual rights and about group rights, the latter being much more controversial than the former. Individual rights guarantee non-discrimination, i.e. ensure that individuals are not treated differently from others for unjustifiable reasons. Group rights demand minority protection measures allowing individuals and communities to preserve their cultural identity and protecting them from forced assimilation (Open Society Institute 2002, 17). This second sort of rights is about the use of languages, education and even forms of political or territorial autonomy. While the Copenhagen criteria of 1993 demanded that future member states would guarantee the protection of minorities, both the Treaty establishing a Constitution for Europe (2004) and the Treaty of Lisbon (2007) have added “the rights of persons belonging to minorities” (my italics) to the articles which cite the values on which the Union is founded and which new member states are supposed to uphold (Consolidated version of the TEU , (2008), Art. 2 and 49). This changed wording of the minority clause reflects a change in the minority policies of the EU member states and of the EU itself that has taken place in the past 15 years. The group-rights approach has almost disappeared; the protection of individuals from discrimination has been strengthened. Three trends in EU policy-making can explain this change in the EU minorities discourse.

From Multiculturalism to Integration First, multiculturalism has been pushed back by of even replaced with integration. Increasingly, European policy-makers have come to the conclusion that their minority populations, who originally came to Europe as foreign workers, would be better off if they were integrated in the countries where they have taken residence and where they are likely to stay, instead of being permanently marginalized through a minority identity. The 1999 Tampere European Council announced “a more vigorous integration policy” which would give migrants “rights and obligations, comparable to EU citizens.” The civic citizenship the Commission had in mind, turned out to be a bridge too far. The result was, however, a series of more modest Directives, such as the Directive on Long Term Residents, to which I will come back below. A number of official statements since indicate the turn from multiculturalism to integration. The Common Basic Principles adopted by the Justice and Home Affairs Council on 19 November 2004, state that “(i)ntegration is a dynamic two-way process of mutual accommodation by all immigrants and residents of Member States” (Council EU 2004, 17). In June 2007, the Council adopted “conclusions on the strengthening of integration policies in the EU by promoting unity in diversity.” These conclusions underline that “migrants who aim to stay permanently or for the long term should make a deliberate effort to integrate, in particular learning the language of their host society, and understanding the basic values of the European Union” (Council EU 2007, 24). The European Pact on Immigration and Asylum, adopted by the European Council on 15 October 2008, invited the Member States to establish ambitious policies … to promote the harmonious integration in their host countries of immigrants who are likely to settle permanently; those policies … should be based on a balance between migrants" rights (in particular to education, work, security, and public and social services) and duties (compliance with the host country"s laws). They will include specific measures to promote language-learning and access to employment, essential factors for integration; they will stress respect for the identities of the Member States and the European Union and for their fundamental values, such as human rights, freedom of opinion, democracy, tolerance, equality between men and women, and the compulsory schooling of children. (Council EU 2008, 6) In such a vision there is less room for minority protection in the sense of safeguarding the traditional identities and cultures of minorities. In fact, the recent immigrants and their descendants, often called new minorities, mainly living in Western Europe, are conceived as a policy problem inherently different from that of the minorities living in the Central and East European countries. These old minorities had their origin far back in history; their situation was to a great extent the by-product of the disintegration of imperial states such as the Russian and the Habsburg Empires and of the new boundaries that followed two World Wars. The policy statements just quoted are soft law instruments; they do not have an immediate legal effect. But we also find a similar tendency towards stressing integration in the EU Directive on Long Term Residents, which says (in article 5.2) that “Member States may require third-country nationals to comply with integration conditions, in accordance with national law” (Council Directive 2003/109/EC). Peers (2004, 60) observes that “there is nothing in the Directive that aims to preserve difference” and identifies here a conflict with international norms, such as article 27 of the ICCPR and the Framework Convention of the Council of Europe. Toggenburg (2005, 731), however, argues that “it is exactly this issue of identity preservation which prevents states from accepting new minorities as addressees of international minority law.”

Rising Racism in Europe and the Expansion of EU Anti-discrimination Law The resurgence of racist violence and xenophobia in Europe in the early nineties of the last century, when the fall of Communism, growing migration and globalization gave rise to profound economic, social and political changes, moved European politicians to demand strong measures to “tackle the tide of racism and xenophobia” (Due 1996). Both mainstream politicians and NGOs urged that EU member states should be obliged to adopt legislation prohibiting racial discrimination; for such EU action, however, the legal basis was lacking at the time. This induced a lobby campaign to create a specific EU competence in the Treaties to combat racial discrimination. At the time, the EU’s competence to fight discrimination was restricted to a ban on discrimination on the basis of nationality (Art. 12 TEC) and the prohibition on unequal pay and sex-discrimination in areas of employment and social security (originally based on Art. 119 TEC, later Art. 141 TEC). The lobby campaign that wanted the EU to take up the fight against racial discrimination presented its demands deliberately as an extension of what was already an accepted part of the acquis communautaire: non-discrimination as an individual right , legitimized not only by fundamental values but also by the internal market, demanding fair competition. In 1997 the campaign resulted in the now famous article 13 TEC, that has enlarged the EU’s competence to take measures against discrimination also beyond the labor market and comprise now – in addition to sex discrimination – not only discrimination on the grounds of racial or ethnic origin, but also on the grounds of religion or belief, disability, age and sexual orientation. These latter four grounds were added by means of a bandwagon effect (Bell 2002, 114), i.e. after smart politicking by involved MEPs and NGOs (Swiebel 2009, 30). Article 13 TEC became the legal basis for new secondary legislation. In June 2000, the Directive against Race Discrimination was adopted (Council Directive 2000/43/EC). A second Directive, which deals with discrimination on the basis of religion or belief, disability, age and sexual orientation, was adopted a few months later, in October 2000 (Council Directive 2000/78/EC). Nobody wanted to give the impression that these other types of discrimination were considered less important than racial discrimination. This does not mean that such an imbalance was absent. The imbalance was – and still is – contained in these legal texts themselves. EU legislation offers the most elaborate protection against racial discrimination. The scope of this legislation covers employment (including vocational training, employment conditions and workers organizations), social security, social protection, heath care, social advantages, education and access to goods and services, including housing. EU sex equality legislation now covers not only the employment issues but also the access to goods and services. The other new grounds for discrimination (religion or belief, disability, age and sexual orientation) are only covered by the prohibition of discrimination at the labor market. This situation is often called the “equality hierarchy”. EU anti-discrimination law discriminates between the various grounds of discrimination (Swiebel 2004, 3). As a result, different groups enjoy different standards of legal protection against discrimination. Such a hierarchy of discrimination sends the wrong political message, i.e. that some animals are more equal than others. In other words, it seems to confirm that some types of discrimination are inherently more serious than others. In addition, it has created a hotchpotch of rules which deteriorates the quality of legislation, the administration of justice and transparency for the citizens. Since 2000, the European Parliament and NGOs have repeatedly criticized this state of affairs and urged a comprehensive anti-discrimination policy that affords an equal degree of protection from discrimination on different grounds. It took until July 2008, before the Commission finally tabled such a proposal (Proposal for a Council Directive 2008). The proposal extends the EU protection against discrimination in areas outside the labor market to religion or belief, disability, age and sexual orientation, but leaves the situation regarding sex discrimination as it stands. This means that sex discrimination, the oldest area of European equal treatment legislation, will now become the type of discrimination with the least protection from EU legislation. Other flaws that are now being discussed in NGO circles and in the European Parliament are blanket exceptions concerning the access to education and exceptions around family status and reproductive rights. Apart from these and other criticisms, it is far from certain that the member states will be prepared to quickly swallow this proposal. The pressure on the EU to take up the fight against racism has not only brought the new article 13 (TEC) legislation, but also new legislation on hate crimes. On 28 November 2008 the Council finally adopted the Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law, after extensive debates in particular on freedom of expression. This Framework Decision obliges member states to make incitement to violence or hatred on the basis of race a criminal offence, while defining race in a broad sense, i.e. also comprising color, religion, descent and national or ethnic origin. It does not, however, include the other non-discrimination criteria of article 13 TEC: sex, disability, age and sexual orientation. The subject matter of the Framework Decision was and still is very sensitive. This political atmosphere is not very inviting to adding new problems to an already overloaded agenda. But it is a real and serious problem that this new EU instrument against hate crimes does not cover homophobic hate speech and homophobic hate crimes. A recent report of the EU Agency for Fundamental Rights recommended that the European Commission “”should consider proposing … legislation to cover homophobia” (De Schutter 2008, 156). The European Parliament recently joined this recommendation and called on the Commission to do so as well (European Parliament 2009, par. 73). Concern about racism and the vulnerable position of minorities is also reflected in articles 21 and 22 of the EU Charter of Fundamental Rights, as adopted at the 2001 Nice European Council. It confirmed, strengthened and widened the principles of non-discrimination and minority protection as a norm for the EU itself and for the Member States, in as far as they are implementing EU law. Article 21 has expanded the forbidden grounds of discrimination to include inter alia language and membership of a national minority, but also the other grounds of article 13 TEC and more. Article 22 states that the Union shall respect cultural, religious and linguistic diversity.

The Mainstreaming of the Non-discrimination Principle The third factor that is linked to the changed minority discourse of the EU is the new policy tool of mainstreaming. Before turning to the mainstreaming of the protection of (persons belonging to) minorities in EU policies, it might be instructive first to look at the origin of this concept and its use within the EU.

Experiences with Gender Mainstreaming The concept of mainstreaming originated in the debates about sex equality policies at the United Nations in the eighties of the last century. It reflects on the one hand the experiences with the so-called “integration” of women’s policies into the mainstream in western countries since the seventies (Swiebel 1988). On the other hand it reflects the experiences in development co-operation, where it was increasingly felt that special development projects for women had to be supplemented by “the integration of women in development”. In 1995 the principle of gender mainstreaming was incorporated in the Platform for Action, adopted by the UN Fourth World Conference on Women, held in Beijing in 1995, urging “an active and visible policy of mainstreaming of the gender perspective in all policies and programmes, so that, before decisions are taken, an analysis is made of the effects on women and men, respectively” (Platform for Action 1995: par. 79 et passim). On this slipstream, the Amsterdam Treaty (1997) inserted gender mainstreaming into the TEC: “In all the activities …, the Community shall aim to eliminate inequalities, and to promote equality, between men and women” (TEC, Art.3.2). Although revolutionary in its potential, because it exposes the often hidden traditional assumptions in policy making (in order to have them corrected), the rhetoric “may prove to be rather more radical than the reality” (Mazey 2001, 49). Academic studies and experiences on the ground have abundantly shown that gender mainstreaming demands an effective political will among the real power-brokers in an organization, including the willingness to make agonizing re-appraisals, enough knowledge and expertise in a specialized policy unit that has the mandate to monitor the state of play, training of officials and development and introduction of new policy tools, such as impact assessments, disaggregated statistics etc. (Swiebel 1988; Council of Europe 1998). Verloo and others (Verloo and Maloutas 2005; Verloo 2007) have emphasized the importance of problem definitions (“framing”). The experience with gender mainstreaming during the last two decades is mixed. The transformatory potential of gender mainstreaming “is all too frequently undermined by assimilatory tendencies” (Squires 2005, 155). It has often become a merely bureaucratic exercise that only resonates with the dominant policy options. Outshoorn and Kantola (2007, 278) observe “that requirements for successful gender mainstreaming such as expertise, sufficient funding and political will, are usually not in place.” They notice also that “its use raises serious questions about the coordination of gender equality policy in the absence of well-marked responsibilities” (ibid.). With these experiences and warnings about gender mainstreaming in mind, we are now well-equipped to look at how the EU is mainstreaming minorities.

Mainstreaming (Ethnic and Cultural) Minorities The intention to mainstream the fight against racism into all relevant EU policy areas was already proclaimed by the Commission in its Action plan against racism in 1998. In subsequent years, minority issues have been integrated in the technique of Impact Assessments and in the policy dialogues that take place within the context of the Open Method of Coordination (OMC). But also in other policy areas minorities became an easy catchword.

Impact Assessments Impact assessments have their background in the wish of the Commission to integrate environmental considerations into policy-making, but were subsequently expanded to cover all sorts of social impacts and even comprise checking new proposals against all provisions of the EU Charter of Fundamental Rights (Shaw 2004, 28; Toggenburg 2006, 11-13). The guidelines to be followed by Commission officials when making such an Impact Assessment of a new policy proposal include questions such as: Does the option significantly affect third country nationals, children, women, disabled people, the unemployed, the elderly, political parties or civic organisations, churches, religious and non-confessional organisations, or ethnic, linguistic and religious minorities, asylum seekers? (Impact Assessment Guidelines 2005:31) A special Commission website gives an overview of the application of this instrument ([klik hier]; accessed January 20, 2009). To which extent it has indeed induced better law-making does not immediately catch the eye. Monitoring to what extent the impact assessments have brought visible improvements in the field of non-discrimination and minority protection goes beyond the scope of this article. Toggenburg (2006, 13) notes that this method leads to highlighting the economic and social side of the minority issues, and not that much the cultural, let alone the political dimension of minority issues.

Employment and Social Policies The same, almost by definition, can be said of the application of the Open Method of Coordination to employment and social policies. The OMC was meant to stimulate an open exchange on policy ideas and experiences between the Member States and between them and the Commission. Under this intergovernmental method, the Member States are evaluated by one another (peer pressure), with the Commission"s role being limited to monitoring. It is based principally on: (a) jointly identifying and defining objectives to be achieved (adopted by the Council); (b) jointly established measuring instruments (statistics, indicators, guidelines) and (c) benchmarking, i.e. comparison of the Member States" performance and exchange of best practices (monitored by the Commission). The OMC is not laid down in basic EU law, but rests on political agreements made in the European Council, i.e. soft law. Almost from the beginning, the European Employment Strategy (EES) has incorporated guidelines on the integration of ethnic minorities and other disadvantaged groups into the labor market. Targets, such as for women, are not given. A common problem is the lack of comparable definitions and data. The 2007 National Reform Programmes show that the labor market dimension of migration is an important issue for the majority of the member states (Kate and Niessen 2008, 71). The yearly Joint Employment Reports give the impression that labor market participation of immigrants (or third country nationals) is mainly seen as an issue of sustaining the labor market or reducing labor market shortages. The perspective of integrating immigrants or minorities is much less acknowledged (Kate and Niesen 2008, 72). Toggenburg (2006, 15) observes that in the EES ”belonging to an ethnic minority is seen as a ‘particular risk factor’ (italics in original) which enhances exclusion”. The same applies to social inclusion, a policy area for which an OMC was introduced in 2001, to combat poverty and social exclusion. The 2005 Joint Report on Social Protection and Social Inclusion outlined seven key policy priorities, one of which was “overcoming discrimination and increasing the integration of ethnic minorities and immigrants”. The 2008 Joint Report affirms that “inclusion and anti-discrimination policies need to be reinforced, not least in relation to immigrants and their descendants and to ethnic minorities” (Kate and Niessen 2008, 105). Neither these or other documents in the OMC’s policy cycle clearly indicate to what extent the member states have realized these priorities. Also, these reports mainly focus on new minorities, while policies regarding old minorities are left out, i.e. left to the discretion of the member states. The mainstreaming of immigrants or ethnic minorities throughout EU policies has assumed enormous proportions, i.e. enormous proportions of words. Next to the policy areas mentioned above, immigrants/minorities are mentioned in all sorts of other EU policy areas, such as external relations, justice and home affairs, education, health, urban and regional policies, etc. We also find other minorities and so-called vulnerable groups such as the disabled or young people scattered throughout these texts, but incidentally and unsystematically. Surveying them all is not an easy task. The European Commission has subsidized two experts to map out all these activities. The resulting Guide to Locating Migration Policies in the European Commission (Kate and Niessen 2008) counts 129 pages! This Guide, however, does not give an assessment of the effectiveness of EU actions in this respect vis-à-vis the member states. Neither do we get here an insight in the allocation of funds to minorities or to minority studies and activities. De Witte and Horváth (2008, 382) observe that “the emerging EU minority policy is extremely multi-faceted, but also scattered and indirect;” this makes it “difficult for anyone not fully conversant in EU-speak to see the full range of functions and responsibilities that may impact on minorities.” Toggenburg perceives a “new engagement” of the EU with minorities within the EU territory, consisting of “astonishingly far reaching hard law instruments in the field of non-discrimination” and “politically strong, but legally soft” activities in the sphere of social and other policies. “All this clearly demonstrates that de Union internalized its minority engagement” (Toggenburg 2006, 27). Looking at the lessons gender mainstreaming has taught us, I am less optimistic. Minority mainstreaming exercises at the EU may be rather a form of ”issue perversion”; the issue has been cut and fashioned to make it fit into the dominant policy discourse. It is seemingly taken on board, but the priority is low and concrete results are uncertain.

Women and Diversity

As we have seen, EU attention to racial discrimination had entailed the taking on board of a whole series of other grounds of non-discrimination. Article 13 TEC counts six of them, article 21 of the Charter of Fundamental Right seventeen. As a matter of fact, sex discrimination is always included in such lists, but we may ask to what extent the promotion of equality between women and men is really part of the diversity management that seems to have taken hold of the EU. The fight against sex discrimination still has a special place at the EU. There are different treaty provisions and separate bodies of EU law. At the Commission, the units for equality between women and men and for action against (other) types of discrimination have only recently been moved into the same Directorate. There are two separate groups of experts enlisted by the Commission to shed light on discrimination on the grounds of sex and on the other article 13 grounds respectively; they hold separate meetings and prepare separate publications (see: [klik hier], accessed January 20, 2009). The new EU treaties have kept the mainstreaming provision mentioned above: “In all its activities, the Union shall aim to eliminate inequalities, and to promote equality, between men and women” (Treaty of the Functioning of the European Union (2008), art. 8 (ex Article 3(2) TEC). But the other article 13 grounds have acquired a similar provision, be it in a different wording: “In defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation” (ibid., Article10). It will give years of employment to feminist lawyers to argue whether these two different provisions indeed reflect different rights or not. Some infer from article 3(2) TEC a positive obligation to improve the position of women. Others state or deplore that this is not the case. Bringing women under the diversity concept apparently is neither self-evident nor unanimously accepted.

Conclusion

The minority discourse of the European Union has developed from group rights to individual rights. This has both a narrowing and a broadening effect. On the one hand, the approach has become narrower; it focuses mainly on non-discrimination and participation in economic life. The protection of minority identities has become of secondary importance. On the other hand, the EU non-discrimination discourse has a much broader scope than ethnic minorities only; it is beginning to develop into a diversity policy, for old and new member states alike. This recent new engagement has different roots. It stems from enlargement and conditionality, but is also linked to the long-established principle of equal treatment of women and men and its extension to a broader-based anti-discrimination legislation, as well as to the use of new instruments in social policy making. Together these roots have grown a vast forest that is sometimes lacking accessibility. And sometimes it seems that the flowers are fake. EU institutions should enhance transparency and make clear the real effect of all these activities. More research is needed to map out how the relevant policy mechanisms really work and what results they produce. Is the diversity policy in the member states really helped by EU activities, and if so, in which respect and at what cost? Are member states pursuing different policies in these areas than they would have done without the EU’s influence? Without beginning to try to answer these questions, it will be impossible to say whether the new engagement of the EU in this area really makes a difference. We have already many studies at our disposal on the implementation by the member states of the EU’s anti-discrimination directives. The purpose of these studies is mainly to help the Commission in its role as guardian of the treaties. In the end, we will be able to measure the effects of the EU’s legal activities by studying implementation at the national level and the case law of the European Court of Justice. But regarding the soft law component it is now almost impossible to separate facts from fiction. Extra efforts are needed to make the soft law actions of the EU more transparent. Experiences with gender mainstreaming in the EU and in the member states should make us more skeptical before believing wholeheartedly and unconditionally in the EU’s new engagement with minority issues. Moreover, the new approach has included all sorts of target groups in a fragmented and dissimilar way. Still some animals are more equal than others. The promise of a comprehensive EU policy on equality and non-discrimination has still to be fulfilled.

Works Cited

Bell, Mark. 2002. Anti-Discrimination Law and the European Union. Oxford: Oxford University Press. Bogdandy, Armin von. 2007. The European Union as Situation, Executive and Promoter of the International Law of Cultural Diversity: Elements of a Beautiful Friendship, Jean Monnet Working Paper 13/07. New York: NYU School of Law. [klik hier] (accessed January 20, 2009. Charter of Fundamental Rights of the European Union. Official Journal C 303/01, 14.12.2007. Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, Official Journal C 115/01, 09.05.2008. Council Directive 2000/43/EC of 29 June 2000, implementing the principle of equal treatment on grounds of racial and ethnic origin, Official Journal L 180/22-26, 19.07.2000. Council Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation, Official Journal L 303/16-22, 02.12.2000. Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, Official Journal L 16/44-53, 23.1.2004. Council of Europe 1998. Gender Mainstreaming: conceptual framework, methodology and presentation of good practices. Final report of Activities of the Group of Specialists on Mainstreaming, EG-S-MS (98) 2. Council of the European Union (Justice and Home Affairs), Brussels, 19 November 2004, Presidency Conclusions, Press Release No. 14614/04 . Council of the European Union (Justice and Home Affairs), Luxemburg, 12-13 June 2007, Presidency Conclusions, Press Release No. 10267/07. Council of the European Union. 24 September 2008. European Pact on Immigration and Asylum. Doc. 13440/08. Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law, Official Journal L 328/55-58. Due, Johnita P. 1996. European Union Anti-Discrimination Policy reaches Turning Point, The Human Rights Brief; [klik hier] (accessed January 20, 2009. European Council (Brussels) 2008. Presidency Conclusions. 15-16 October 2008. No. 14368/08. European Council (Copenhagen) 1993. Presidency Conclusions, 21-22 June 1993. No. 180/1/93. European Council (Tampere) 1999. Presidency Conclusions, 15-16 October 1999. No. 200/1/99. European Parliament resolution of 14 January 2009 on the situation of fundamental rights in the European Union 2004-2008, P6_TA(2009)0019, also available online at: [klik hier]Framework Convention for the Protection of National Minorities, CETS No. 157, available online at: [klik hier] (accessed January 20, 2009). Impact Assessment Guidelines, SEC(2005) 291, 15 June 2005. Henrard, Kristin. 2007. Equal Rights versus Special Rights? Minority Protection and the Prohibition of Discrimination. Luxembourg: Office for Official Publications of the European Communities. [klik hier] (accessed January 28, 2009). Kate, Mary-Ann and Jan Niessen. 2008. Guide to Location Migration Policies in the European Commission. 2nd ed. Brussels: Migration Policy Group 2008. Also available online: [klik hier] (accessed January 20, 2009). Kochenov, Dimitry. 2007. Commission’s Approach to Minority Protection during the Preparation of the EU’s Eastern Enlargment: Is 2 Better than the Promised 1? European Diversity and Autonomy Papers 02/2007. [klik hier] (accessed January 20, 2009). Kochenov, Dimitry. 2008a. EU Enlargement and the Failure of Conditionality: Pre-accession Conditionality in the Fields of Democracy and the Rule of Law. Austin etc.: Wolters Kluwer. Kochenov, Dimitry. 2008b. A Summary of Contradictions: an outine of the EU’s main internal and external approaches to ethnic minority protection. Boston College international and comparative law review, 31: 1-51. Mazey, Sonia. 2001. Gender Mainstreaming in the EU: Principles and Practice. London: Kogan Page. Official EU languages [2009], [klik hier] (accessed January 20, 2009). Olsen, Johan P. 2007. Europe in Search of Political Order: an institutional perspective on unity/diversity, citizens/their helpers, democratic design/historical drift and the co-existence of orders. Oxford/New York: Oxford University Press. Open Society Institute. 2001. Monitoring the EU Accession Process: Minority Protection; Country Reports. Budapest/New York: Central European University Press. Open Society Institute 2002. Monitoring the EU Accession Process: Minority Protection, volume II: Case Studies in Selected Member States. Budapest/New York: Open Society Institute. Outshoorn, Joyce and Johanna Kantola. 2007. Assessing Changes in State Feminism over the Last Decade. In Changing State Feminism, ed. Joyce Outshoorn and Johanna Kantola, 266-85. Basingstoke/New York: Palgrave Macmillan. Padoa-Schioppa, Fiorella K.2005. The Principle of Mutual Recognition in the European Integration Process. Basingstoke/New York: Palgrave Macmillan. Peers, Steve. 2004. “New” Minorities: What Status for Third-Country Nationals in the EU System? In Minority Protection and the Enlarged European Union: The Way Forward, ed. Gabriel N.Toggenburg, 149-162. Budapest: Open Society Institute. Platform for Action. 1995, in Report of the Fourth World Conference on Women (Beijing, 4- 15 September 1995), A/CONF.177/20, United Nations, New York. Also available online: [klik hier] (accessed January 20, 2009). Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age and sexual orientation, COM(2008) 426, 2.7.2008. Richardson, Jeremy ed. 1996. European Union: Power and Policy-making. London/New York: Routledge. Sasse, Gwendolyn. 2004. Minority Rights and EU Enlargement: Normative Overstretch or Effective Conditionality? In Minority Protection and the Enlarged European Union: The Way Forward, ed. Gabriel N. Toggenburg, 59-84. Budapest: Open Society Institute. Schendelen, Rinus van. 2002. Machiavelli in Brussels: The Art of Lobbying in the EU. Amsterdam: Amsterdam University Press. Schutter, Olivier de. 2008. Homophobia and Discrimination on Grounds of Sexual Orientation in the EU Member States: Part 1- Legal Analysis. Wien [Vienna]: European Union Agency for Fundamental Rights, also available online at: [klik hier]Shaw, Jo. 2004. Mainstreaming Equality in European Union Law and Policymaking. Brussels: European Network against Racism. Swiebel, Joke. 1988. The Gender of Bureaucracy: reflections on policy-making for women. Politics 8: 14-19. Swiebel, Joke. 2004. From Rome to Amsterdam and beyond: reinforcement of protection. Speech delivered at the seminar ‘The Fight against discrimination: the race and framework employment directive’, March 5, 2004, Trier: Europaische Rechtsakademie. Also available online: [klik hier] (accessed January 20, 2009). Swiebel, Joke. 2009. Lesbian, gay, bisexual and transgender human rights: the search for an international strategy. Contemporary Politics. 15: 19-35. Thirty years of EU Sex Equality Law: Looking Backwards, Looking Forwards. 2005. Ed. Tamara K. Hervey.[Special Issue of the] Maastricht Journal of European and Comparative Law. 4: 307- 493. Squires, Judith. 2007. The New Politics of Gender Equality. Basingstoke/New York: Palgrave Macmillan. Toggenburg, Gabriel N. ed. 2004a. Minority Protection and the Enlarged European Union: The Way Forward. Budapest: Open Society Institute. Toggenburg, Gabriel N. 2004b. Minority Protection in a Supranational Context: Limits and Opportunities. In: Minority Protection and the Enlarged European Union: The Way Forward, ed. Gabriel N. Toggenburg, 1-36. Budapest: Open Society Institute. Toggenburg, Gabriel N. 2005. Who is managing ethnic and cultural diversity in the European Condominium? The moments of entry, integration and preservation. Journal of Common Market Studies, 43: 717-38. Toggenburg, Gabriel N. 2006. A Remaining Share or A New Part? The Union’s Role vis-à-vis Minorities After Enlargement. EUI working papers 2006/15. Fiesole (Italy): European University Institute. [klik hier] (accessed January 20, 2009). Also published in: The protection of minorities in a wider Europe, ed. Marc Weiler, Denika Blacklock and Katherine Nobbs, Basingstoke/New York: Palgrave Macmillan, 2008. Treaty establishing a Constitution for Europe [TCE], Official Journal C 310/01, 16.12.2004. Treaty establishing the European Community [TEC], consolidated text, Official Journal C 325/23, 24.12.2002. Treaty of the European Union [TEU], consolidated text, Official Journal C 325/5, 24.12.2002. Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007, Official Journal C 306/01, 17.12.2007. Verloo, Mieke and Maro Pantelidou Maloutas eds. 2005. Differences in the Framing of Gender Inequality as a Policy Problem across Europe. [Special issue of the] Greek Review of Social Research, 117: 1-249. Verloo, Mieke ed. 2007. Multiple Meanings of Gender Equality: A Critical Frame Analysis of Gender Policies in Europe. Budapest/New York: Central European University Press. Witte, Bruno de and Enikö Horváth. 2008. The many faces of minority policy in the European Union. In Synergies in Minority Protection: European and International Law Perspectives, ed. Kirsten Henrard and Robert Dunbar, 365-84. Cambridge: Cambridge University Press.